Responsibility versus antivaccine activists

Antivaccinationists endanger public health. They deny to high heaven that that is what they do, but they are deluding themselves. Their fear mongering about vaccines, in which vaccines in general or specific ingredients are portrayed as causing autism and a wide variety of chronic diseases, despite study after study failing to find even a whiff of a hint of a correlation between vaccines or vaccine ingredients and autism, have resulted in precipitous declines in vaccination rates in some areas and contributed to an increase in the distrust of vaccines by parents. In the US, although overall vaccine uptakes remain high, there are increasing pockets of low vaccine uptake that can serve as foci for outbreaks to occur. About five or ten years ago, it seemed to me that the antivaccine contingent was ascendant, but fortunately, thanks to the downfall of Andrew Wakefield and increasing scrutiny by the news media (not to mention a growing contingent of skeptical bloggers), the tide seems to be turning. It used to be that virtually every story about vaccines would feature the false balance of a vaccine “skeptic” arguing against science. We see much less of that these days, and that’s a good thing indeed.

One area where antivaccinationists have still had a bit of progress is in opposing or watering down laws designed to make it harder for parents to obtain nonmedical exemptions from vaccine mandates for school Although certain vaccines are required before children can enter school, in 48 states nonmedical exemptions to this requirement can be obtained in the form of religious exemptions and, in many states, “philosophical” exemptions, which basically means the parents saying they don’t want to vaccinated because, well, they have a philosophical objection to them. In other words, they don’t want to. Now, few would argue that adults don’t have control over what they put into their bodies and the right to refuse virtually any medical intervention. However, the same does not apply to children. Parents shouldn’t have the right to withhold lifesaving medical care from their children, such as chemotherapy for children with cancer, insulin for diabetic ketoacidosis, or antibiotics for serious infections. True, in practice, unfortunately, that is not always true, as all too many parents have gotten away with substituting faith healing and quackery for effective medicine for their children, even they manage to let two of their children die.
A case can be made that refusing vaccines for children is potentially just as negligent as the beliefs that led Catherine and Herbert Schaible in the Philadelphia area to choose prayer over antibiotics for pneumonia. Their choice resulted in two dead children. Who better to make that case than Paul Offit, who wrote an article for Philly.com entitled End religious exemption. Using the Schaible case as his jumping off point, Offit argued:

In 2009, Herbert and Catherine Schaible chose prayer instead of antibiotics for their 2-year-old son, Kent, who died from bacterial pneumonia. The Schaibles received 10 years’ probation. Recently, their 8-month-old son died without medical care. Their other seven children have now been removed from the home.

The 14th Amendment to the Constitution states that “no state shall … deny to any person within its jurisdiction the equal protection of the laws.” Children whose parents hold certain religious beliefs shouldn’t be afforded less protection than other children. That the commonwealth has allowed children to die from measles, bacterial pneumonia, or leukemia in the name of religion is inexplicable. That it continues to allow such abuse in the face of recent deaths is unconscionable.

He has a point. There is a growing body of evidence that, consistent with what one might conclude based on common sense, states with vaccine exemptions that are easy to obtain tend to have more parents who take advantage of them and more unvaccinated or under-vaccinated children. From a strictly scientific standpoint, the fairest solution would be to eliminate nonmedical vaccine exemptions altogether. It would also protect children who are unfortunate enough to be born to parents who, for whatever reason, are unwilling or unable to provide them with the basic protection against disease that modern medicine can provide.

If not vaccinating only endangered the children who don’t receive protective vaccines, that would be bad enough, but it goes beyond that. Unvaccinated children contribute to the degradation of herd immunity, serve as potential vectors for outbreaks of infectious disease, and tend to cluster, making the effect on herd immunity locally that much worse. In brief, parents who refuse to vaccinated endanger not just their own children, but all children who come into contact with their children. This simple fact led noted bioethicist Art Caplan to write a recent article for Harvard’s Bill of Health blog entitled Liability for failure to vaccinate. Noting that molecular biology is allowing scientists to get better and better at tracking disease outbreaks to their source and thus identify “patient zero” with more accuracy than ever, Caplan asks:

I think there should be a right to decide not to vaccinate your child. But, we have been far too lenient in putting up with the consequences of that lousy choice. If your kid gets the measles, and remember public health officials are getting very very good at tracing outbreaks to their source, and makes my kid sick (can happen since vaccine is not 100% effective), my newborn baby die (newborns can’t benefit from vaccines) or my wife miscarry (fetuses are at especially high risk), then shouldn’t I be able to sue you for the harm you have done?

He concludes:

When the subject is vaccines a tiny minority continue to put the rest of us at risk. We are willing to let them choose to do so without penalty. That should change. If I know you or your kid made mine sick because you chose not to vaccinate then you should bear full responsibility for the harm you knew or ought to have known could happen.

I’m not entirely sure I agree anymore with Caplan that there should be an inherent right not to vaccinate your child. I used to, but my thinking on the issue has been evolving recently. At the very least, I’m starting to look at it this way. There’s no “right” to endanger other children in school when vaccines are so effective and safe, with serious reactions veyr rare. Be that as it may, I’ve always thought that, if parents are have the right not to vaccinate, they also bear the responsibility that comes from that choice. There should be a mechanism to sue parents who refuse to vaccinated their child if their child ends up making another child sick—not just to sue, but to sue for big damages. After all, antivaccine parents frequently harp on “personal freedom” and “personal responsibility.” Fair enough. I believe in personal responsibility, too, which is why I believe that antivaccinationists should take responsibility for their actions in the form of legal liability. If the child infected by the unvaccinated child dies, I might even go so far as to advocate a statute that would allow the vaccine-averse parents to be charged with negligent homicide, as portrayed on an episode of Law & Order:SVU a few years back, to the outrage of antivaccine-leaning moms.

Not surprisingly, the antivaccine crank blog did not like Paul Offit’s editorial. Its editors didn’t like it one little bit. Anne Dachel trotted out the usual “pharma shill gambit” and ad hominem attacks against Paul Offit. She even trots out a massive flaming straw man, “Vaccines were only a little part of this story and it seems that parents shouldn’t be allowed the final say in any medical procedures their children receive. Paul Offit’s views supersede any religious beliefs parents might hold.” Man, that one can no doubt be seen from space.

A lawyer named Alan Phillips even popped up on uber-crank Mike Adams’ site NaturalNews.com to try to refute. It’s a lot of the same antivaccine nonsense, with some strange legal arguments thrown in. For instance, he points out that vaccines don’t always work and that there are a lot of nonimmune vaccinated children out there, all of which is true but irrelevant to the argument over vaccine exemptions. He claims that some kids develop natural immunity, conveniently leaving out that children need to get the disease. He claims that children can get natural immunity without getting sick and that the CDC said so; I must admit, I couldn’t find an instance of the CDC stating this, but I didn’t have large amounts of time to keep looking. I will admit one thing, namely that Phillips did say something that intrigued me and irritated me:

A complete explanation of how exactly the law defines “religious in nature” is beyond the scope of an article, but in general, anyone who is not an atheist can potentially qualify for a vaccine religious exemption–the legal definition of ‘religion’ is literally that broad.[1]

It’s just one more instance of how religious belief is privileged in this country. In states that allow religious exemptions but not philosophical exemptions, religious people have a “right” that atheists do not: The right not to vaccinate their children. Granted, that’s not exactly an attractive right given that it involves actively choosing not to protect children against disease, but it still privileges the religious.

Be that as it may, even as a non-lawyer I saw some questionable legal reasoning as well. For instance, while railing against the decisions of the Mississippi Supreme Court, whic ruled that religious exemptions violate the 14th Amendment’s Equal Protection Clause. Phillips characterizes that ruling as an “anomaly” and “embarrassment,” but fails to note that the U.S. Supreme Court has repeatedly upheld the Constitutionality of vaccine mandates and that, exemptions aside, no court has found any individual constitutionally entitled to forego compulsory vaccination on any ground.

Perhaps the most amazing argument Phillips makes is this:

There is a legal presumption that the exercise of a vaccine religious exemption does not pose a significant risk to anyone; for if it would, state legislatures, who are presumed to have considered the possible consequences of enacting exemption laws, would not have enacted the exemption laws in the first place. The consequences state legislatures considered were all medical safety issues, of course. That is, the legal presumption rests upon prevailing medical theory and practice.

So, medically and legally, religious exemptions pose no significant health risks. Moreover, should they ever pose a potential health risk in the future, states are empowered to take steps to keep the risk at bay. For example, exempt kids can be excluded from school during local outbreaks, and health authorities may quarantine unvaccinated persons during a declared emergency.

If there is, in fact, a “legal presumption” that vaccine religious exemptions “pose no significant health risk,” that’s all the more reason why the law should be changed. It’s just plain wrong. Nonmedical exemptions to vaccine mandates do nothing more than increase the number of unvaccinated children, thus degrading herd immunity and endangering children, unvaccinated and vaccinated alike. If, in fact, there is a legal presumption of no harm from exemptions, then the law is an ass. The rest of Phillips’ article degenerates into a rant, in which he claims that vaccines are made by an industry that “routinely engages in criminal behavior” and that vaccines “injure and kill.” He even trots out the same old ad hominem attacks against Paul Offit in which he is accused of not serving science and the law but “another master.”

In any case, if you look at her argument, she uses the same irrelevant argument that Phillips used, namely that vaccines don’t always work, which means that there are unvaccinated nonimmune children out there, and—oh my God!—we don’t hold the parents of these children responsible! For example:

Dr. Caplan seems to suggest a peculiarly narrow kind of civil liability, allowing claims only by those who have been vaccinated and become sick against those who lawfully refused vaccination. What if a vaccinated person spreads disease? Presumably, she would bear no liability because she would not have been negligent.

She uses the case of a case in which a father apparently contracted polio from the diaper of his daughter, who had recently had the live polio vaccine (which isn’t used any more, by the way). One notes that this occurred before the Vaccine Court, and that the family litigated it. The vaccine industry, obviously, fought. In court. Holland also failed to mention that Mr. Tenuto ultimately prevailed to the tune of $22.5 million in 2009.

Not content with that non sequitur, Holland followed up with a straw man:

And what if disease breaks out in a highly vaccinated population, with no unvaccinated person to finger? There have been numerous outbreaks of mumps, measles and pertussis with no initial cases traced to unvaccinated individuals. [See, e.g., Nkowane et al, “Measles Outbreak in a Vaccinated School Population: Epidemiology, Chains of Transmission and the Role of Vaccine Failures,” AJPH April 1987, 77, no. 4.] Presumably, Dr. Caplan would argue no liability should inure to industry because the sale of ineffective or defectively designed vaccines does not constitute negligence.

Except that Caplan said nothing of the sort and argued nothing of the sort. Holland merely “presumes.” In any case, Holland’s argument seems to boil down to pointing to risks of vaccines and crying “Freedom!” Indeed, a reader over at the Bill of Health blog commented that “some old-fashioned torts analysis would be helpful.” Basically, the burden of risk (which for vaccines is very, very small, is only one factor to consider against the benefits of vaccination to each child individually and to society as a whole. He refers to the “textbook example of negligence” as the one “where an individual seeks to avoid imposing burdens on self and thereby externalizes risk to others.” A better description of antivaccinationists is hard to imagine. Indeed, whether or not some vaccinated people might spread disease is irrelevant to whether nonvaccinating parents are acting unreasonably and should be liable. The example used is driving a car. Drivers can cause accidents without negligence, but that is not a bar to liability for negligent drivers. He concludes:

The closest that this fact would come to being relevant would be if one were claiming that the risk of spreading disease is equally as high for those vaccinated and unvaccinated. That claim would undermine causation. But of course, that’s generally not true.

And how!

It’s nowhere even close to being true, although likely Holland believes it to be true, given her history of vastly exaggerating the risks of vaccination (e.g., claiming that vaccines cause autism) and downplaying the benefits.

I’m not sure if I support eliminating all religious and philosophical exemptions, although, if anything, I’m closer to that position than I was a few years ago, largely thanks to my observations of the behavior of the antivaccine movement and resurgence of measles in the UK, thanks to the decline in vaccine uptake encouraged by Andrew Wakefield’s dubious studies and the scandal hunger of the British press. That question aside, I also believe in personal responsibility, which is why I agree with Art Caplan that there should be a mechanism to sue non-vaccinating parents whose children spread disease and can be shown to have caused injury to others. It is, after all, a matter of taking responsibility for one’s actions.

Of course, taking responsibility is anathema to antivaccinationists. Their whole idea is to avoid even the slightest risk and, knowingly or unknowingly, to sponge off the herd immunity of those who accept the tiny risk of vaccination.

I worry about (though very secondarily to the health of the newborns I see in my office) my liability if an infant contracts measles or whooping cough or varicella from being in my waiting room with an infected un/under-vaccinated older child (which is of course what happened from one of Dr. Bob’s unvaccinated patients to cause the 2008 Southern California measles outbreak). The AAP tells me not to turn away these families who won’t vaccinate, but as more parents come in telling me they don’t want to vaccinate (and not for any medically valid reason), the risk of an infant getting sick in my waiting room increases. I’m fairly certain personal injury lawyers would be much more interested in suing a physician with malpractice coverage in this scenario than the parent who didn’t vaccinate their child. And, of course, while the AAP continues to ingnorantly tell me to just talk “longer and harder” to parents who don’t want to vaccinate (which almost never works), then continue to let Sears and Gordon merrily romp, unfettered and free in the land of anti-vax treachery, spreading their lies and quackery as FAAP pediatricians. It’s just wrong and disgusting. The AAP should be ashamed of its inaction on this for the last seven years.

In my state (Arizona) some legislators have been trying to get bills passed that would either eliminate the “personal belief” waiver, or at least require that you (as a parent), have seen a doctor who vaccinates children and had explained–in no uncertain terms–the risks to your child and public health by not vaccinating (similar to what’s been going on in California). I’m not too optimistic about such a law happening here because of the libertarian voter streak in AZ.

Also, in May 2012, the local paper did an article on school vaccination rates in Tucson (http://azstarnet.com/news/how-we-got-the-story/article_5c54fe95-f266-5071-98eb-68074921bdc1.html). What I found disturbing is that the state health dept won’t release vaccination rates for classes with fewer than 20 children because it could violate the privacy of children and families. Huh?!? Only if the class was 100% unvaccinated would it do that, and what is so magical about the class size of 20? Thus, parents who do vaccinate can’t even find out which schools have clusters of unvaccinated children, which is where you don’t want your vaccinated child to be during an outbreak of a vaccine preventable disease.

I do believe if the professional groups that can sway public opinion–the AAP, AAFP, CDC–all spoke out more vigorously and openly against ALL antivaccine quackery, more parents would vaccinate. As it is, these bastions of academia just sit around studying what’s happening, scratching their heads (and other parts), thinking that we primary care physicians just aren’t working hard enough to convince parents to vaccinate. I call BS on that. They need to get off their duffs and help us.

Rose–the vapidness of you comment shows the depths of your ignorance. Life is far from perfect–but if you actually had a damn clue about the epidemiology of vaccine preventable diseases and the amazing, life-saving decreases in them due to vaccination, you might realize life was a whole lot farther from perfect before vaccines. But then, thanks to vaccines, you’ve probably never seen a baby with whooping cough fighting to stay alive, or a toddler die from Hib meningitis/septicemia. I have–and it’s awful. And the older pediatricians tell me stories of when it was a lot worse back in the “older days” of fewer vaccines.

@Rose – please point to even a specific instance where the stance that vaccines were 100% safe or 100% effective was articulated here – because that is one giant flaming strawman you just put out there….

“I don’t agree with what they do, but you are doing your own fear mongering. Vaccines are far from perfect.”

You know what is 100% not perfect? Not vaccinating. So, if we’re going to play the game of weighing things out, then we can come to the conclusion that not vaccinating is 100% evil since it’s 100% not perfect.

Folks, you should forgive Rose for seemingly not thinking things through before posting. It happens to the best of us.

One problem I see with attempting to prosecute “patient zero” if that person is unvaccinated is that there are also legitimate reasons not to vaccinate. Presently, a person who cannot be vaccinated (e.g. due to allergy to egg albumin, which is in those vaccines where the antigens are grown in chicken eggs) is not held to any higher standard than anybody else when it comes to disease prevention. If you really want to focus only on the elective failure to vaccinate, then you would need to write the law extremely carefully, and even then I think you might run into problems. After all, how can you call a person with a religious exemption negligent, while a person with a vaccine allergy is not, when all else is equal? Would we start requiring the non-vaccinated (for whatever reason) to undergo more stringent quarantines? Separate them from the population? That seems unfair to those with medical exemptions.

Right now, there are actually no mandatory vaccines at all, which is another thing to consider. Vaccination is required for school entry; it is not required for citizenship or even simply to exist. Adults have no vaccination obligations whatsoever, most of the time; why would an adult who transmits pertussis be less liable than an unvaccinated child who does the same thing?

And then, of course, there is the problem that not everybody who skips vaccines is doing it deliberately. Despite the importance of public health, free vaccination programs are not as universal or as easy to get to or, indeed, as “free” as we might like to believe. We already penalize poverty in this country in many ways; let’s not add another.

I agree that we should end philosophical objections. But I think attempting to hold people criminally or even civilly liable for starting an epidemic is a little shakier, and could be untenable on legal grounds. Note that I am not a lawyer, so I may well be wrong about that, but it just seems like it would be a lot more complicated than it seems to achieve what is being suggested.

Presently, a person who cannot be vaccinated (e.g. due to allergy to egg albumin, which is in those vaccines where the antigens are grown in chicken eggs) is not held to any higher standard than anybody else when it comes to disease prevention. If you really want to focus *only* on the elective failure to vaccinate, then you would need to write the law extremely carefully, and even then I think you might run into problems. After all, how can you call a person with a religious exemption negligent, while a person with a vaccine allergy is not, when all else is equal?

People with a vaccine allergy do not fall under the category of non-medical exemptions and do not “choose” not to be vaccinated. They have valid medical reasons why they can’t be vaccinated and being vaccinated would pose too much of a risk to them. Consequently, this whole discussion really doesn’t apply to them, and your argument here is a bit of a non sequitur, not to mention false equivalence. The question of whether such people should be held to any “higher standard” is a separate issue from non-medical exemptions.

As for criminal prosecution, no one, least of all myself, is advocating criminal prosecution of non-vaccinating parents. I am, however, advocating allowing civil recourse. I do agree that such laws would have to be narrowly crafted, such that parents who don’t have resources to get their children vaccinated don’t get caught up in it.

I’m fairly certain personal injury lawyers would be much more interested in suing a physician with malpractice coverage in this scenario than the parent who didn’t vaccinate their child.

There is a good reason for this, as Calli points out: you have deep pockets (in the form of malpractice insurance), and most parents don’t.

@Calli: with a lot of these recent epidemics of vaccine-preventable diseases, Patient Zero is somebody who traveled to a region where the disease is still endemic. There may be some medical exemptions in that group, but most such unvaccinated kids will be kids whose parents got a non-medical exemption. So a liability statute would require good epidemiology to identify Patient Zero, as well as clauses that would allow those claiming medical exemptions (and those who did get the vaccines but didn’t get immunity) to avoid liability. With good epidemiology, it’s unlikely you will trace one of these diseases to somebody whose parents couldn’t afford (either financially or timewise) to get their kids vaccinated.

The key point here is that it matters whether the lack of vaccination was due to a deliberate reckless action on the parents’ part. With medical exemptions, the failure to vaccinate cannot be called reckless. For parents who can’t afford to get their kids vaccinated or don’t have access, that would be at worst negligent, and not reckless. But a parent who gets a non-medical exemption for her kids is acting deliberately, and with reckless disregard for the safety of other people’s kids.

I don’t agree with what they do, but you are doing your own fear mongering. Vaccines are far from perfect

And diseases themselves are perfect? How exactly? So, please, Rose, explain very carefully with real verifiable scientific documentation how the risk from a vaccine is greater than the disease. Please tell how how the over thousand cases of measles, with over eighty hospitalizations, in Wales is preferable to preventing the disease with two MMR vaccines?

Oh, and I just did the numbers from NVICP cases that were compensated on any measles vaccine in the last 24 years. It turns out less the five hundred measles vaccine cases were compensated out of over ninety million doses of MMR. That is a measles vaccine injury rate of less than 0.0005%.

And as a parent of a child who had seizures from a now vaccine preventable disease: where is the National Disease Injury Compensation Program?

I don’t think most people think of the body of a person infected with an infectious disease as a pathogen production and distribution machine, but that is what they become. As I have pointed out here before, a person infected with measles develops coughing and sneezing before the rash appears, and before they realize they have something more serious than a common URTI.

They then go about their normal business around other people, sending out clouds of aerosols containing millions of infectious viral particles with every sneeze and cough, and these viral particles are equipped to impair the immune system of people who inhale them, allowing them to infect them.

When we look at infectious diseases in this way, I think it becomes clear that it is every person’s personal responsibility to take every possible measure to ensure that their, and their children’s, bodies do not do this. Vaccines are a very safe and effective way of preventing this from happening.

In terms of harm, the number of people who suffer a serious reaction to vaccines is at most in the region of 1 in 1 million, so there are perhaps at most a few hundred people seriously affected every year in the US. When we compare the number of people killed in road traffic collisions (c. 38,000 pa), or by firearms (c. 30,000 pa), there is clearly no comparison. The benefits of vaccines clearly rival the benefits of both cars and firearms, while the risks are far, far lower. Why is it, then, that the parents who refuse to vaccinate their children because of the 1 in a million risk, as willing to drive around with their children in the car, putting them at a far greater risk. I don’t get it. Perhaps Rose could explain, if she is still reading this.

If we look at a computer analogy, unprotected computers are frequently harnessed by hackers for DDOS attacks, for example. Should a person be held responsible if his computer was used for one of these attacks without his knowledge? I think that if he didn’t bother to protect his computer with an antivirus, he should be held responsible, just as someone who infects another person with a pathogen should if they have not taken measures to prevent it.

I favor no non-medical exemptions, for kids, or adults.
Yes, the State can force vax into your body or ask you to leave – that is the rest of us saying you can’t recklessly endanger us that way. Quarantining folks in outbreaks is fairly ancient, and an example of where your rights end.

@ Rose: I didn’t see posting on the two subsequent posts, as I, Chris, Darwy and a few others have done:

Some of the comments that are posted are priceless! I asked Ms. Holland about autism from the American MMR before 1990, and someone chimes in that I would be interested in a Japanese study. He lists some results, and expects me to believe him even though he listed no title, journal or authors. That is a very strange place.

It’s always refreshing, after reading Orac, to traipse over to AoA or TMR, to observe how ‘the other half lives’.
.
but Holy Frick!**
TMR’s Ms Prof ( who is, I think , a psychologist, causing me to request RI’s proverbial paper bag) asks us to’ think globally’ about vaccines – but not in the way that we’d expect ( i.e. giving them to poorer countries in order to help them prevent disease) but NO!

Seems we’re exporting thiomersal and autism. We could just help them to ‘clean up’ a bit. That’s what helped the west. Fortunately, I saw no mention of the Gates or their foundation.

One thing that about anti-vax proselytisers: notice how their grasp of the relevant material appears to be inversely related to the loudness ( or strength) of their response.

Reiss forms her response under 3 headings:
A. Absence of a Common Law duty
B. Freedom of Religion and tort liability
C. Is it unfair to impose liability on parents who do not vaccinate while parents of vaccine-injured child cannot sue the manufacturer directly?

It’s “index case.” Patient zero would be like trying to find the first person to get exposed to HIV from an ape and actually get sick from it. The index case is the first recognized case of a disease. In the HIV analogy, it would be one of the first few people back in the 70s to be diagnosed with the multiple opportunistic infections that, at the time, had no name.

After all, how can you call a person with a religious exemption negligent, while a person with a vaccine allergy is not, when all else is equal?

All else is not equal, h and cannot be, however, because unlike medical exemptions religious exemptions are founded in superstitious belief.

Unless of course those seeking religious exemptions can demonstrate god actually exists and is opposed to immunization to the same extent that those seeking medical exemptions can demonstrate they’re actually allergic to eggs…

Orac wrote : >As for criminal prosecution, no one, least of all myself, is advocating criminal prosecution of non-vaccinating parents. I am, however, advocating allowing civil recourse. I do agree that such laws would have to be narrowly crafted, such that parents who don’t have resources to get their children vaccinated don’t get caught up in it.<

While I’m entirely happy with principle of vaccination based on community responsibility (i.e I have a duty to have myself/child vaccinated in order to avoid exposing others to death or disablement) ‘crafting’ such laws “narrowly” seems fraught with problems. There are some profound questions about the rights of disabled people that follow from this because those people who are excluded from vaccination by valid medical reasons, in order to avoid being the target of civil claim, would in effect require medical certification for: ‘being out on the street, unvaccinated’. And the issue would not end there – having identified these modern day ‘lepers’ as entities with in law, both parents and social authorities would face potential demand for exclusionary provision based on a safety first policy. After all if you can sue a parent who exposes the public to their child who is unvaccinated because of antivax reasoning, why should a school board not be required to segregate children who pose a civil harm because of their medically warranted unvaccinated status ?

I think this fractious problem is resolved, if instead looking to institute a right of liability, a wholly different direction is taken in respect of: 'the rights of a child as Citizen'. In this sense a parent, rather than being able to impose their own particular/perverse philosophy on their (possessed – child as property) offspring/wards, a parent would have to justify why a child should not receive all the benefits of citizenship, which should include access to mandated healthcare. Simple extension of this would additionally provide protection from the ‘experimentalists’ who subject their developmentally challenged children to untold cruelties in the name of curing autism. Asserting the rights of citizenship has many advantages over a principle of making people liable for being ill.

Does anyone know Paul Offit means by “commonwealth” in his article? I doubt it’s the British Commonwealth since in the UK any child put at risk of serious harm by the beliefs, religious or otherwise, of her parents is immediately made a ward of court, and given whatever medical treatment is necessary. That goes for blood transfusions (e.g. Jehovah’s Witlesses) and cancer treatment, as we have seen in a few cases of parents absconding to “protect” their children from radiotherapy.

-when I look at anti-vax groups’ facebook numbers ( which may be somewhat relevant, given the age group of parents involved), I see 6K, 12K, 25K ( the vaccine machine).
-There is overlap between the groups obviously ( see leaders’ names, commenters etc)
-Krebiozen mention a 2% figure for parents who attribute their children’s ASD to vaccines.
-People who follow alt media ( NaturalNews, PRN, Mercola) may be sympathetic ( larger numbers) but not activists.

Thus this is a very small group that is dispersed across English-speaking countries.

Of course, they could say the same about Orac et Cie but there also seems to be that consensus thing; you know, doctors, nurses, scientists et al, who accept SBM.

We should always be aware that we’re talking about a tiny minority that may be less than believers in UFO ( thanks, JGC)

People with a vaccine allergy do not fall under the category of non-medical exemptions and do not “choose” not to be vaccinated.

I agree, but with all due respect, you missed my point. How do you construct a law such that this distinction can be made? Where one person, due to a documented inability to be vaccinated, is not liable, but another person who lacks such documentation is? I agree with your sentiment, I’m just not sure there’s a reasonable way to implement it. I do not think the distinction between negligently unvaccinated and responsibly unvaccinated* could be made in a way that would be legally meaningful.

And that’s true whether you’re talking about civil or criminal cases. Seriously, I agree with the sentiment of wanting unvaccinated disease mongers to get what’s coming to them, but I think this way doesn’t make sense.

*I’m choosing the words “neligently” and “responsibly” because I think that’s what we’re trying to get at here. The trouble is drawing that line — especially when we already know there are doctors who will write up notes for antivaxxers.

@ Orlac: I think you missed the point about people who have valid medical contraindications-versus-parents who deliberately chose to opt out of vaccines for their children.

Those disabled people that you refer to, are the ones we are trying to protect, in addition to infants who are too young to have received (under age one) the full series of childhood immunizations…and those who are immune-suppressed because of the treatments they are receiving for cancer and other diseases and disorders.

It is not up to school boards to segregate unvaccinated children during an outbreak, but rather the school superintendents/principals/nursing and physician staff and the local health department to bar children who are unvaccinated during an outbreak of a vaccine-preventable-disease. Every State has Health Department and Department of Education regulations in place to bar children from attending a school program, during an outbreak. (But there is a problem there, at the beginning of an outbreak, when the “index case” is not symptomatic and not diagnosed and manages to expose and infect other children who have medical contraindications).

There are many instances where a deliberately unvaccinated child exposes and infects vulnerable children in hospital emergency rooms and in physicians waiting rooms:

I agree, but with all due respect, you missed my point. How do you construct a law such that this distinction can be made?

I don’t think I missed your point at all, and actually, quite honestly, I think that’s arguably the easiest part of implementing a law, because the distinction is already baked into current law in the very definition of medical versus non-medical exemptions.

Where one person, due to a documented inability to be vaccinated, is not liable, but another person who lacks such documentation is?

Exactly my point. Intent matters in the law for purposes of liability, in this case a reckless lack of concern for whether or not one’s actions endanger others. The parents of a child who can’t be vaccinated don’t intend to avoid vaccination and thereby contribute to a degradation of herd immunity. They are acting as responsibly as can reasonably be expected given their child’s diagnosis and medical inability to tolerate vaccination. In essence, they have no choice. Antivaccine parents who actively claim an exemption on non-medical grounds, on the other hand, actively choose a path that has the potential to endanger others.

I do not think the distinction between negligently unvaccinated and responsibly unvaccinated* could be made in a way that would be legally meaningful.

And I think you are wrong about this. Again, this is arguably the least messy part the discussion, at least to me. If a child has a diagnosis that precludes him from being vaccinated, whatever it is, that’s a medical contraindication to vaccination. There’s the meaningful difference.

I live in fear when my infant was born because there’s no oversight — I don’t know if another kid in her daycare, another kid in the doctor’s office, is unvaccinated and waiting to give my kid the measles. It could happen at the grocery store or the playground or the mall. There are plenty of crunchy types or even not so crunchy types in my upper middle class district of DC who believe Dr. Sears over the CDC.

My kid got her shots as soon as she was eligible, every time. My ped got “that look” on his face when I asked about her MMR, then LAUGHED OUT LOUD when I asked if she could get it sooner than 12 months. I think unless there is a strong medical indication against vaccination for a particular child, they should get it. A lot of the so-called “religious exemptions” are antivax rumor mongering, anyway. Like the antivaxxers like to say that the vaccines are derived from fetal cells so if you’re pro-life you shoulnd’t vax, but the Pope has said that you should. (Guess what, guys? Vaccination saves babies and fetuses.) Antivaxxers say the Amish don’t vax, but they do, etc.

@AllieP: I believe the reason for not giving MMR before 12 months is that it doesn’t “take” as well and the immunity would wear off too quickly. Giving it at 12 months usually lasts through childhood, though they need a second booster at some point.

They do sometimes give it to babies between 6 and 12 months if there is a known outbreak in the area. Then the babies get it again after 12 months, to confer more lasting immunity.

…They do sometimes give it to babies between 6 and 12 months if there is a known outbreak in the area. Then the babies get it again after 12 months, to confer more lasting immunity.

And they also still get the booster at age 4-5 years, too as we’ve been doing in Tucson this last year after our 2008 measles outbreak, brought to us courtesy of an unvaccinated, measles-infected tourist from Switzerland.

@ Krebiozen: You are correct about the persistence of maternal antibodies in children less than 1 year of age. The CDC Pink Book (p 179, bottom), makes note of the increased risk to infants for measles whose (weaker) maternal antibodies were transferred from moms who were immunized against measles, rather than antibodies from wild measles virus.

lilady,
That reminds me of my concern about babies born to mothers who are unvaccinated and who have not had wild measles infection – they will have no measles antibodies at all. The cohort of children not vaccinated in the UK due to the Wakefield effect are at childbearing age now, and I’m worried about this.

I’m not sure any change in the law is needed to allow for negligence liability of the kind discussed here.

The tort of negligence comes out of common law, that is, from judges, not statutes. (Sometime statutory law limits or expands negligence claims, but that’s probably mostly not an issue here.) The elements (requirements) of a negligence claim are a duty (often just the duty to act reasonably to avoid injury to others) a breach of that duty, and damages (legally recognized harm) caused by the breach.

I’m guessing that, before the ability to trace the source of an infection genetically, the main problem with a negligence claim for transmission of, say, measles, was proving that your measles came from a specific person. For someone with no health reasons to avoid the vaccine, fortunes might vary in persuading a court that not vaccinating is unreasonable. However, once an epidemic/outbreak has been going on for a while, the unreasonability of non-vaccination should become clearer. Courts may be nervous to be the first to be pioneers in recognizing a specific form of negligence claim, but once the form of claim is recognized in a precedential ruling (usually a published opinion of a reviewing court) other courts should be more willing to follow suit.

(Disclaimer: Although I am a lawyer, I am not YOUR lawyer and I probably am not licensed in your jurisdiction. This is not legal advice and is not based on research. It’s a suggestion that this might be worth research.)

Orac said: “[Mike Adams said some kids develop natural immunity, conveniently leaving out that children need to get the disease. [Adams] claims that children can get natural immunity without getting sick and that the CDC said so.”

I can give you an n=1 on this. I’ve never had chicken pox, and at the age of 42 I’m far older than the vaccine. However, when I was pregnant in 1998, my titres were checked and, as well as showing antibodies to rubella (due to both natural infection at age 6 and an immunisation through a free government program at 14), I show high antibody levels to varicella. My doctor’s response to this unusual result was that because my brother had had three (yes, three) episodes of chicken pox between the age of 14 and 17 (poor boy), just by being in the same house as him gave me sufficient exposure to develop antibodies myself without causing illness.

Does this make me ‘anti-vaccine’? No freaking way. The varicella vaccine wasn’t on the free government vaccination schedule when my daughter was born, however it was available if parents wanted to shell out the bucks. I did, gladly. I also paid a huge amount to get her the pneumococcal vaccine off schedule. I would do anything to protect my only child from illness, pain and potential disability or death. She has had all her scheduled immunisations including Gardasil last year. Immunisation is critically important, and any anti-science conspiracy theorist who says otherwise is a child-hating oxygen thief.

Thanks Beryl MacLachan for your legal opinion. So sad, that we are discussing this topic…when kids don’t have to die from vaccine-preventable diseases.

From the “Just the Vax” blog, the death of Natalie from SSPE after surviving a measles infection in early infancy. The other child, Misha, who contracted measles in early infancy from that same unvaccinated 11-year-old and was dying from SSPE, died recently:

“As for criminal prosecution, no one, least of all myself, is advocating criminal prosecution of non-vaccinating parents. I am, however, advocating allowing civil recourse.”

That’s a reasonable and moderate position.

For a moment, consider only the actions and consequences. –
Imagine that a motivated group with a particular hatred for the USA, call it the “Talibacillus” (nonsense, but the syllables flow) wished to spread a biological agent among schoolchildren and used an army of “bio-bombers” comprising children of their recent converts. They calculate that an epidemic of an ordinary, naturally occurring disease will run further before effective measures are taken against it than an exotic bug, perhaps becoming permanently established.

They prepare to start the campaign when their strategic leader realizes they can do something much better: trick the target into amplifying the bio-bomb. Using a “godly natural purity” campaign, they work to reduce vaccination rates for childhood diseases in targeted areas to below the herd immunity threshold. Once that is achieved, martyr/carriers are sent into the schools.

A casual acquaintance told me recently about her newborn, who was diagnosed at 3 WEEKS of age with pertussis. This mother had done all the things she could: all the grandparents etc were given clear instructions that if they wanted access to the baby, they would have to have pertussis boosters, and by all accounts, they did. After the baby’s diagnosis, blood tests showed that family members had done as requested. So she believes the infection was contracted before she and the baby went home although I don’t know if that is possible or not.

I am not a big fan of drug testing–tolerated it while in the military because that was the deal you had to take although I never used nor was interested in using drugs–and not sure that testing employees for tobacco use is the best use of resources. But I sure would support blood testing to ensure health care workers–all of them, not just direct patient care workers–were adequately vaccinated as a condition for getting and maintaining employment. It’s a start.

BTW, Jenny McCarthy made the cover of the latest REASON magazine as one of the top 45 people most detrimental to liberty because of her anti-vax stupidity.

My doctor’s response to this unusual result was that because my brother had had three (yes, three) episodes of chicken pox between the age of 14 and 17 (poor boy), just by being in the same house as him gave me sufficient exposure to develop antibodies myself without causing illness.

@Narad at #47. Is that through the extremely rare vaccine failure? I’d hate to be one of the unlucky ones for whom the tetanus component didn’t ‘take’. I might be inclined to try majik water if that happened to me.

There’s always vit c, colloidal silver and coconut oil as an alternative if the majik water doesn’t work. /end sarcasm

@ BrewandFerment (#46): I had to prove I’d received all my vaccines to start medical school. For residency I had to prove titers to Hep B. My titers were low-so -I had to get 2 more Hep B vaccines before I was considered immune by titers. Seemed like overkill at the time, but I was happy 2 years later when I got a needle stick cleaning up after putting in a central line on an infant with several maternally acquired infections. After that, I just can’t understand why anyone who works in health care wouldn’t want to be fully vaccinated, including flu shots.

I just went over to read the Caplan story, and, in an unwise move, stayed to read some of the commentary. Wow. Some of those people give kooks a bad name. I had to share the recommendation of one, though. She, obviously well-versed in Immunology 101, suggested that all one needed to do was get “titter [sic] checks” to determine if vaccination was necessary for one’s children or pets.

I think that if patient zero was purposely not vaccinated, and they were sued, it would get more done as far as stopping anti vaxx as any other policy could. Money talks, and people do not like to take risks.

I think this needs to happen NOW. The next anti vaxxer that spreads a VPD and harms others needs to lose their home and life savings. Especially if their actions KILLED.

No, the paper describes an unvaccinated population. It’s not the one I was looking for (which may be in the references; I had another iron in the fire). The one I recall, if I recall it correctly, identified spore → gut at low levels over time.

Psst Stacey, the unvaccinated child, who, it is determined started an outbreak is referred to as “the index case”. “Zero Case” is a relatively new phrase, first used to describe the first case of a newly-identifed disease-causing pathogen i.e. the HIV (virus). Since that time that phrase has been used to describe newly emerging diseases such as Ebola virus and even certain novel influenza viruses. “Zero Case” is used by mainstream media, and epidemiology purists have debates about that neologism.

It has been mentioned before on other threads but it bears repeating in this context. There is no mainstream religion which is opposed to vaccination. The vast majority of so-called “religious” exemptions are a cynical attempt to use religion as a shield to prevent scrutiny of their antivax views.

Of course this means that one form of irrationality (religion) is used as cover for another form (antivax).

@ DrBollocks
I’m not sure what you would consider a mainstream religion, but there are groups in mainstream religion, who are opposed to vaccination in my home-country, in what we tend to call, the ‘bible belt’. And they are opposed to vaccination, because their interpretation of the bible says so. And that is not really a cynical attempt to use religion as a shield to prevent scrutinity of their antivax views. They are mostly also opposed to insurance, because one should trust on the Lord. Of course, in case of a fire, they are more than happy to recieve help from their fellow man.

There is a growing move amongst the states of Australia to pass laws requiring children to be vaccinated before starting daycare or school (unless they have a valid medical exemption). My state recently passed such a bill; unfortunately it contained the rider that religious exemptions could also be granted (we have some conservative kooks in the upper house).

The AVN apparently attempted to register as a religion, which was laughed at by the appropriate body.

AllieP @30: About un-vaxxed kids in daycare: one of my friends is a teacher at a daycare/preschool formerly associated with a hospital and the school has very clear and very strict rules that all children must be current on all their vaccinations in order to attend. Granted, most of the kids are too young to have had all of their shots, but the kids have to be on-schedule. (The teachers are another story, and one that is probably going to be an issue at some point.)

Since they are a private school they haven’t had any trouble telling prospective parents “vaccinate or no enrollment”. They hae also been able to put their foot down with a parent who wanted her child to drink unpasturized cow’s milk. (I believe the rule there was “human breast milk only, no other special foods”.)

Of course, not every school can make these requirements, or enforce them, but it is possible to be pro-active about it.

Wait so, when my hypothetical spawn is six months old, I could get it an MMR shot in case it gets coughed on before 12 months, it just doesn’t count as one of the scheduled shots? I am suddenly much less opposed to at least some instances of “customizing the schedule” than I was a while ago.

Playing Devil’s Advocate here. What if the parents of patient zero could prove that they acted in good faith on misinformation from someone styling themselves as qualified to provide medical advice? Dr “give me ten of your pennies” for example. Would that shift the burden of responsibility?

Oh, and before I leave: I have been catching up on podcasts after spending several days driving around our state with hubby (actually staying in places with no cell service!). So today I listened to last weeks “This Week In Virology.” One of the picks was this graphical representation of vaccine preventable disease outbreaks:http://www.cfr.org/interactives/GH_Vaccine_Map/index.html#map

There are several good ways to craft either a statute or a common law court decision that treat differently those with a valid medical reason not to vaccinate and those without one, but it’s not even clear it’s needed. Assume for a moment that no statute was enacted, and that a common law court acknowledged a duty of care when an unvaccinated child transmitted a disease to a vaccinated child: plaintiff would still have to show that not vaccinating was, in that case, unreasonable, and a medical reason not to vaccinate would be highly relevant, as several people pointed out above: not vaccinating based on misinformation from anti-vaccine sites is unreasonable. Not vaccinating because your child has a specific medical reason that makes vaccination risky for them is not. And by the way, to a previous question, the standard for negligence is objective: being sincerely unreasonable is not a defense. The defendant is held to a community standard. If you craft a statute, you could just limit liability to non-medical exemptions; that raises the problem that in some states medical exemptions are easier to get than in others, but that problem should probably be dealt with elsewhere.

Beryl: I agree with you that a change in statute is not necessary for liability, but courts will have to deviate from their long standing reluctance to acknowledge a duty to act. I think Caplan’s original article addressed causation fairly well: I think you’re right it would be an issue in some cases, but not in others, and there are pretty powerful tools now to track an infection to source, I think.

@Renate #60; @PGP #70: There are fringe members of all religions who interpret the scriptures in ways which differ from the majority. The vast majority of Christians, Muslims etc have no problem with vaccination. Given there are something like 2.2 billion Christians and 1.5 billion Muslims (according to Wikipedia) in the world, even a small minority can amount to a large number of people.

Ditch the sarcasm PGP. Despite the actions of a few extremists, ISLAM IS NOT ANTI-VACCINATION. The South African Islam Medical Association supports vaccination.
I’m getting rather tired of your ill-informed little rants.

As do the Organisation of Islamic Cooperation and the International Islamic Fiqh Academy. Have a fatwah on the house (PDF). It’s hard to imagine being unaware that the meningococcal vaccine is mandatory for performing the Hajj, which itself is nearly mandatory.

We currently have a measles epidemic in regions where people don’t vaccinate for religious reasons. Today I heard a family doctor (who was religious himself), the people did something else to prevent their children from getting ill, this was, praying. He stated it was better to put trust in god, than in mankind.
Judging from the measles-cases, one would say, this wasn’t really a succesfull strategy.

Speaking as someone who lives in a jurisdiction with taxpayer-funded single-payer healthcare, I’m utterly, utterly in favour of abolishing non-medical vaccine exemptions. From my possibly purely self-interested point of view, it’s a hell of a lot cheaper for me and the rest of Q. Taxpaying Public if people get vaccines on the healthcare system, rather than treatment for VPDs. Like, orders of magnitude cheaper.

Since everyone around here but me* seems to be complaining about how much tax money healthcare eats up, eliminating opportunities for vaccine refusal seems like a cheap way to save some big bucks.

I like paying taxes, but I don’t like throwing good tax money after bad, either, such as by having to clean up the costly and preventable messes of idiots who don’t wanna vaccinate.

The (suburban Chicago) Daily Herald today provides us with a profile of the mildly infamous Hollie Redinger, dominatrix of the disappeared “Motherhood: The Truth” Facebook group and, of course, this caller, as well as physician Sean Radin, who works at the “National University of Health Sciences” on the side.

Julian Frost: Sorry. I was previously aware of only three interactions between Islam and medical vaccinations, and I assumed the problems with the anti-polio campaign in Nigeria, Pakistan and Afghanistan and the measles outbreaks in the Somali population here were due to religious prohibitions against vaccinations. (Well, the CIA sticking its oar in the Pakistan vaccination effort probably didn’t help.)
Dr. Bollock: It’s getting really hard to tell the ‘fringe’ from the ‘majority’ these days.

I assumed the problems with the anti-polio campaign in Nigeria, Pakistan and Afghanistan and the measles outbreaks in the Somali population here were due to religious prohibitions against vaccinations.

The anti-polio stuff in Pakistan (and possibly Nigeria and Afghanistan) is largely due to misinformation campaigns (e.g., “The polio vaccine is an attempt by the evil West to sterilize you!”) and fallout from the idiotic CIA’s use of a vaccination campaign as a cover to collect DNA samples to try to find Bin Laden.

The Somali population’s refusal of vaccines in Minnesota is a direct result of the efforts of Generation Rescue, DAN! doctors and Andrew Wakefield. I’ve corresponded with the MN DoH about the issue, and by the time of the measles outbreak, many of the Somali population had already been involved with GR and DAN! doctors, with Wakefield swooping in like a vulture several times, as well. From GR, JB Handley told them not to trust the state health department, to slow down their shots and get exemptions from school requirements and offered to pay for them to attend anti-vaccine conferences (most likely AutismOne).

So religious beliefs played little to no part in those examples. In the former, religious leaders may have been the ones spreading the misinformation, but it stems more from political, rather than religious, ideology.

@Todd – the anti-vax sentiments in those nations are very much also “anti-Western” which is utilized by the various extremists groups to justify their actions…..it is unfortunate that the last refuges of this virus in the wild is in some of the most inhospitable, inaccessible (both physically & due to violence), and chaotic areas on the planet.

If not for the “war on terror” I’m sure we could have reach the eradication goal by now….

As others have noted, there are no major, mainstream religions that oppose vaccinations.

As I seem to find myself noting repeatedly of late, it doesn’t matter. In the U.S, you can’t cite the Vatican to deny an exemption to a Roman Catholic. This is why the Arkansas law was struck down. This is why a Catholic can succeed in New York in obtaining an exemption to vaccines cultured in fetal cell lines. This was the whole damn problem with giving a special dispensation to the Native American Church, and only the Native American Church, to employ peyote.

Oh, I fully agree with you regarding the pointlessness of illustrating that major religions don’t oppose vaccinations. Frankly, there should not be any exemption based on religious beliefs. If non-medical exemptions are allowed, they should only be “personal belief” or “philosophical” exemptions.

Still, I think it is worthwhile to note that the major religions do not oppose vaccines as an illustration that religiously-based arguments against vaccines are simply examples of using religion to justify anti-vaccine ideology and rather hypocritical, rather than being based in any manner of sound theology. From a legal standpoint, it doesn’t matter, but from a philosophical point of view, it’s a good exercise.